§41

The person must give himself an external sphere of freedom in order to have being as Idea. The person is the infinite will, the will which has being in and for itself, in this first and as yet wholly abstract determination. Consequently, this sphere [externality?] distinct from the will, which may constitute the sphere of its freedom, is likewise determined as immediately different and separable from it.

[the person in Hegel encounters the external world as the sphere of its freedom. the person is itself a category that only becomes possible in given historical circumstances (in the context of the modern state). for Schmitt, this whole edifice is grounded on a more origniary ‘event’ which constitutes the very possibility of law. appropriation of land (which constitutes the social group as such in this gesture – although the chicken and egg not made problematic by schmitt. to what extent is the whole of Hegelian right established on the exclusion of originary mit-sein? what are the consequences for his development, esp when it comes to sovereignty. is globalisation the completion of Hegel and the revelation of an originary structure of being-together? ]

§42

What is immediately different from the free spirit is, for the latter and in itself, the external in general – a thing [Sache], something unfree, impersonal, and without rights.

[why is the external constituted as a ‘thing’?, a bounded entity, already. Is the external not in the first instance place? the ground from which ‘things’ emerge as things]

The word ‘thing’ [Sache], like the word ‘objective’, has two opposite meanings. On the one hand, when we say ‘that’s the thing‘, or ‘the thing, not the person, is what matters’, it signifies what is substantial. On the other hand, when contrasted with the person (as distinct from the particular subject), the thing is the opposite of the substantial: it is that which, by definition, is purely external. – What is external for the free spirit (which must be clearly distinguished from mere consciousness) is external in and for itself; and for this reason, the definition of the concept of nature is that it is the external in itself.

[so the thing here is externality as such, nature which has not been incorporated[?], in itself in opposition to the person (still as abstract concept).

In Hegel, the sphere of right is premised on the individual (the person). cf. the dialectic of self-consciousness in Phenomenology – it is mutual recognition of independent Is that is the motor driving Spirit to its apotheosis.

See HERE (Hegel’s Philosophy of Right, David James) for more on the establishment of the sphere of freedom (on the prehistory of the person)

Hegel’s Encyclopaedia account of the struggle for recognition and the master-slave relationship can be viewed as an attempt to explain how
the consciousness of oneself as a person became possible in the state of nature and how this consciousness in turn made possible a condition of right. Hegel’s Philosophy of Right, David James, CH1.

[…]

The theme, or the moral, is that true, un-self-deceived self-consciousness is only possible for agents who accord each other the respect due to equals. Self-knowledge and the freedom that issues from it is a social achievement, in a community of equals. One-sided recognition is a failure. There must be some terms, some concept, in respect of which we recognize each other, some language of mutual recognition. The minimal concept, the simplest of terms, is that of the person, the atomic individual, the claimer and respecter of rights. Gudebook, 97

[…]

What does the argument (or story, or allegory, or diagnosis) tell us about personhood? This is a hard, hard question, but it must be attempted. First, it tells us that the concept of a person is a social concept in this sense: the sense of oneself as a free and independent individual can be attained only by persons who live in communities which permit mutual recognition between equals.

[…]

Second, personhood, a status concept, if not in Hegel’s sense a moral one, is constituted by the fact of reciprocal recognition. The aspect of personality which is recognized is persons’ jural  standing or capacity for right  (Rechtsfähigkeit, §36), their status as makers of rights claims, and, reciprocally, their duty to respect the claims of right which others legitimately make against them. Gudebook, 102

[…]

To be a person just is to be recognized as an ethically significant other,  bounded and discrete.

[…]

Hegel argues that property is a relation of will between the owner and the possession. Since, as we have seen, the person is a bounded, discrete
individual, the will which is embodied in property is exclusive. It thus follows that all property must be in some sense private, that the concept
of common property is unintelligible or incoherent. Hence it follows that systems of common property, as advocated for example by Plato in the Republic for the Guardian class, and as recommended by socialists, are unjustified. Guidebook, 108

the first appropriation in Schmitt is a group appropriation (which founds the law, and therefore, the group itself). Communal property is therefore not incoherent. It is only so if the assumption of individualism, the person, etc. is imported into discourse. This must be the direction of globalisation. It is at the origin of a new thinking of community, of the commons, of the global political order. Only opening as such at the full disclosure of the globe. globalisaiton as deconstruction.

if Schmitt is correct/justified then the foundation of the community is rooted in a generalisable, intercultural grounding moment. There is no community that would precede or be exempted from this originary gesture. it also accounts for the bond of people and territory.

Property in this Hegelian sense would therefore be derivative. I think that Schmitt says as much – that all legal systems for allocating property rights are downstream from an originary founding gesture. Cultural diversity would not therefore be accounted for at the root where the theatre of the world is established. Hegel’s analysis would begin one step too late on the basis of the occlusion of this origin.

we examined the distinctive self-consciousness of a person – the sense that individuals have acquired that they are discrete entities, bounded atoms, separate and different from each other. Hegel argues that this capacity for identifying the self in its difference is radically incomplete. It is a ‘wholly abstract determination’ (§41); the person can say of himself, ‘I am me and not you’, but nothing more. The distinctiveness of the personal self is thus far a condition of ‘mere  subjectivity’ (§41A) which must be superseded. It needs ‘an external sphere of freedom in order to have being as Idea’ (§41).

[…]

§44

A person has the right to place his will in any thing [Sache]. [This is] the absolute right of appropriation which human beings have over all things’

All things [Dinge] can become the property of human beings, because the human being is free will and, as such, exists in and for himself, whereas that which confronts him does not have this quality. Hence everyone has the right to make his will a thing [Sache] or to make the thing his will, or, in other words, to supersede the thing and transform is into his own; for the thing, as externality, has no end in itself, and is not infinite self-reference but something external to itself.

[…]

Thus to appropriate something means basically only to manifest the supremacy of my will in relation to the thing [Sache] and to demonstrate that the latter does not have being in and for itself and is not an end in itself.

This manifestation occurs through my conferring upon the thing an end other than that which it immediately possessed; I give the living creature, as my property, a soul other than that which it previously had; I give it my soul.

§45

To have external power over something constitutes possession […]. But the circumstance that I, as free will, am an object to myself in what I possess and only become an actual will by this means constitutes the genuine and rightful element in possession, the determination of property.

His claim is not (the plausible one) that property enhances freedom as it broadens our opportunities. It is the different claim that property is necessary for the self-consciousness and thereby mutual recognition that is integral to freedom. Guidebook, 117

[…]

‘I, as free will, am an object to myself in what I possess’ (§45); ‘my will, as personal and hence as the will of an individual, becomes objective in property’ (§46); ‘The existence which my willing thereby attains includes its ability to be recognized by others’ (§51).

Property is a fundamental aspect of the realisation of the individual (individuation?). Only through the appropriation of externality does the (free) will realise itself in the world in a system of mutual recognition. ‘my will, as personal and hence as the will of an individual, becomes objective in property’ (§46)

is it possible to argue that the Hegelian position does not exclude the Schmittian position – it is not one or the other – but that Hegel’s occludes a more fundamental foundation or grounding? the unilateral encounter between an individual and externality takes place in a territory, which is to say in an externality that has been appropriated and therefore established as a ‘sphere of freedom’. In fact, that the person is a historical achievement implies that such a theatre exists as a condition of possibility for the person.

[NB. The links between private property and sovereignty (of interest for Autonomy 2).

In Hobbes’s state of nature, ‘there is no Propriety, no Dominion, no Mine and Thine distinct’ (Hobbes 1985: ch. 13, 188). Persons contract with each other to establish (or are to be understood, being rational, as disposed to accept) a sovereign power which is assigned ‘the whole power of prescribing the Rules, whereby every man may know what Goods he may enjoy . . . Rules of Propriety (or Meum and Tuum)’ (Hobbes 1985: ch. 18, 234). On this account, the rules of private property are justified as the imposition of a sovereign power which citizens (hypothetically, on my  eccentric reading of Hobbes) have agreed to authorize. This contractualist justification of private property (supposing, as Hobbes does, that it is a system of private property (of Meum and Tuum) that the sovereign will prescribe) may be supplemented by a proto-utilitarian argument to the effect that citizens would only accept the sovereign’s judgement on who owns what as decisive if they were convinced that his decisions were to the advantage of everyone. Guidebook, 109

To summarize: we have before us  examples of actual and hypothetical contract arguments. These (Locke excepting) generally legitimize private property indirectly as the prescription of a legitimate sovereign which legislates to give effect to the values of its citizens. 110]

WHY PROPERTY MUST BE PRIVATE (HEGEL)

Property is justified as necessary for the objective identification of the personas a discrete existence. It permits the self-identification necessary for freedom and displays this moral atomicity to the world at large: ‘Since my will, as personal and hence as the will of an individual [des Einzelnen], becomes objective in property, the latter takes on the character of private property’ (§46). It is easy to see why Hegel emphasizes this. His argument for the rationality of property requires us to triangulate our distinctive position as rights bearers back from the objects we own, and this would be impossible were all property to be owned collectively (as with the property of a family or the state) or communally (as in the common land of a crofting township, wherein all crofters have an individual inclusive right to graze). Grant him his argument concerning the role of private property in establishing the freedom of persons and we can endorse his conclusion that the property which serves this purpose must necessarily be private property. [Guidebook, 123]

ACQUISITION

Some of the property we own has been given to us, but most has been purchased. We vindicate the claims that we make to it through showing receipts. But Hegel reserves discussion of these modes of acquisition to the section on Contract (§§72–81). At this stage of the argument he is discussing the taking into possession of things that are unowned, res nullius. He is  discussing original acquisition.

[…] even at the time Hegel was writing, original acquisition was not a major problem concerning the property regimes of the societies he held under review. Hegel knew this well enough. In the modern world ‘property is . . . based on contract and on those formalities which make it capable of proof and valid before the law’. ‘The original, i.e. immediate, modes of acquisition and titles (see §§54ff) are in fact abandoned in civil society’ (§§217, 217R). Original acquisition must have taken place hundreds of years back and the details of whether this conformed to any putative principles would be unrecoverable. 130

Original acquisition [RADICAL TITLE] is therefore a problem for the system of Rights in Hegel. The system does not account for it. To this extent, it is occluded.